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Uno Mas  SASS #80082

Ninth Circuit Holds Second Amendment Secures a Right to Carry a Gun

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That from Kozinski is part of his dissenting opinion in 328 F. 3d 567 - Silveira v. Lockyer.

More of Kozinski:


The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. See Kleinfeld Dissent at 586-587; see also Brannon P. Denning & Glenn H. Reynolds, Telling Miller's Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 117-18 (2002). The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon — a sawed-off shotgun — was reasonably susceptible to militia use. See Miller, 307 U.S. at 178, 59 S.Ct. 816. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.


The majority falls prey to the delusion — popular in some circles — that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth — born of experience — is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341-42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417, 15 L.Ed. 691 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

Kleinfeld also does a masterful dissenting opinion in that case.


The most important phrase for determining the scope of the operative words of the Second Amendment (and the most troublesome to the panel) is "the right of the people." The operative words of the amendment syntactically protect the right of "the people," not the "militia," to keep and bear arms. Despite the panel's extensive discussion of "keep," "bear," and the preamble, it simply skips over "the right of the people" and attempts no direct analysis of the phrase. Marbury v. Madison held that "It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it."34 Yet the panel's conclusion that the Second Amendment creates no individual rights whatsoever, only a "collective right" apparently not enforceable by anyone, requires that this clause establishing a "right of the people" be read as though it were "without effect."


The "collective rights" interpretation of the Second Amendment, that it confers a "right" only on state governments with respect to state militias, is a logical and verbal impossibility in light of the phrase "right of the people." As our Constitution is written, governments have "powers" but no "rights." People have both "rights" and "powers." And the Bill of Rights carefully distinguishes between the powers of the states and the rights of the people, never speaking of rights of the people when it means powers of the states.


The Tenth Amendment expressly draws both distinctions, between powers and rights, and between powers of state governments and powers of the people: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."35 The Tenth Amendment reserves "powers," not "rights," to the state governments, and the Ninth preserves "rights" for "the people." By use of the word "or," the Tenth Amendment makes it crystal clear that "the people" are distinct from the state governments and hold some reserved powers that the state governments do not. The Ninth Amendment, speaking of "rights" rather than "powers," prohibits a construction that would deny unenumerated "rights" to "the people." Without it, the inference from an express listing of rights might have been that there are no others. The Ninth Amendment does not prohibit such an expressio unius est exclusio alterius inference with respect to the state governments, and the Tenth Amendment carefully avoids sorting out which powers are reserved to the states, and which to the people.

See http://openjurist.org/328/f3d/567/silveira-v-lockyer for more.

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A bit of background on Judge Kozinski:

Kozinski was born in Bucharest, Romania, in July 1950. In 1962, when he was 12, his parents, both Holocaust survivors, brought him to the United States. The family settled in the Los Feliz neighborhood of Los Angeles, California, where his father, Moses, ran a small grocery store. Kozinski, who had grown up as a committed communist in Bucharest, became what he described as "an instant capitalist" when he took his first trip outside of the Iron Curtain, to Vienna, Austria, where he partook of such luxuries as chewing gum and bananas.[2]

Kozinski graduated from the University of California, Los Angeles, receiving an A.B. degree in 1972, and from the UCLA School of Law, receiving a J.D. degree in 1975. Kozinski clerked for future Supreme Court Justice Anthony Kennedy on the Ninth Circuit from 1975 to 1976, and then for Chief Justice of the United States Warren E. Burger from 1976 to 1977. From June 5, 1981 to August 1982, Kozinski served as the first U.S. Special Counsel appointed by President Ronald Reagan.


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Now, that aside for a moment...


For a party who present themselves as "representing the less privileged," I'm totally dumbfounded how they can repeatedly re-elect the two most affluent, privileged, and out-of-touch women in the senate... from San Francisco and Marin County - two of the wealthiest and most snobbish enclaves in the US. :huh:



Probably because many voters cannot think beyond recognizing a name. Typical voter may say,

"Oh I recognize that name, I can vote for that person".

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